Month: October 2025

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

At SCOTUSblog, IJ’s John Wrench tells a tale of white coats and black robes: How a 1927 eugenics-era decision warns against swapping judicial scrutiny for “medical consensus”—and how that lesson could shape a free speech case at the Supreme Court.

If you were to break into the National Archives, these days you’d see a sad, though sadly inevitable sight: While portions of the Constitution are still bold and easy to read, the words of the Declaration are fading. Anyhoo, over at the Home of the Brave, IJ’s Anya Bidwell and Patrick Jaicomo say that our Founding ideals are under threat.

New on the Short Circuit podcast: Is sharing your password at work a federal crime?

1. Is the noble tomato fruit or vegetable? Is the bat bird or beast? Is the warden of the Donald W. Wyatt Detention Facility in Central Falls, R.I., acting under color of state law or federal? First Circuit: On that last vexing question, we hold that it’s at least plausible the warden was acting under color of state law. So a former detainee’s Section 1983 suit against him may proceed.
2. Puerto Rican utility officials don’t like town’s mayor, so for years they decline to provide the town with potable water, even though residents pay for it. The utility blames infrastructure issues but no steps are taken to upgrade; during one shutoff, water is restored by simply flipping a few switches at the water treatment plant. District court: Troubling! But political retaliation is a First Amendment issue, and these residents brought due-process claims. First Circuit: These allegations are conscience shocking. Case undismissed.  
3. In 2006, tanker carrying 300k barrels of No. 6 fuel oil runs aground off the coast of Puerto Rico, disturbing a soccer-field-size swath of coral but (phew!) not spilling oil. Feds: The tanker’s owner must pay $1.4 mil more to restore the coral. District court: Yeah, pay up. First Circuit (interlocutorily): Maybe not. Liability depends on (among other things) whether there was in fact a “substantial threat” of a spill, and we can’t just defer to the feds on that. To discovery this must go.
4. A lot of people these days have very strong opinions about what does or does not constitute an “insurrection.” Courtesy of the Second Circuit, you can apply them to something different for a change: Whether Citgo’s insurer is on the hook for over 930k barrels of crude seized by the Maduro regime.
5. New York man is convicted in 2022 on charges of securities fraud, making false filings with the SEC, and improperly influencing the conduct of audits. This comes as a real surprise because in 2021 he was acquitted on charges that he conspired to do all those things. A double-jeopardy violation? Second Circuit: Yes. (Ed.: But he really went looking for trouble with an alias like “Sealed Defendant 1.”)
6. Outside of school hours and not on school grounds, Livingston Manor, N.Y. high school senior stages a photo of a friend putting their knee on his neck. It’s posted to social media with the caption “Cops got another.” Social media is not pleased. And though he quickly deletes it, the post goes viral. He’s suspended and misses out on fun senior class activities. Was that constitutional? District court: Totally, as even though the speech was away from school it caused a substantial disruption. Second Circuit: The “disruption” was a short assembly and student-led demonstration. Constitutional the punishment was not.
7. Allegation: In 1998, after Brooklyn, N.Y. man is convicted of one drug murder and acquitted of another, the feds mark him down as a double murderer. The court orders the mistake corrected, but it’s not, resulting in elevated restrictions and even physical injuries from being placed with more dangerous inmates. Feds: Shucks, but we told him to send the requisite pre-litigation paperwork to the wrong office. His FTCA claims can’t go. Third Circuit (over a dissent): Case undismissed.
8. West Virginia municipalities sue opioid distributors, alleging promiscuous pill-pushing got residents hooked and constituted a public nuisance. District court: State common law doesn’t allow this sort of lawsuit. Fourth Circuit (2024): Would the West Virginia Supreme Court please tell us who’s right on that dispositive state law question? West Virginia Supreme Court (2025): No, thank you. Fourth Circuit (2025): Fine, we predict that these claims are viable under state law, and remand for the district court to try again.
9. After surgeon blows the whistle on Texas Children’s Hospital for secretly running a youth transgender program that was to have been closed down, he’s indicted for violating HIPAA and faces a decade in prison plus $250k in fines. The feds drop the charges, however, and the surgeon tries to get the criminal discovery materials in the hands of his civil counsel, by way of modifying a protective order. District court: No. Fifth Circuit: Yes. Any concern about the presence of protected grand jury material is purely speculative, and a reasonless district-court decision gets no deference. Dissent: This risks a grave violation of grand jury secrecy.
10. Between election years, Tarrant County, Tex. redraws commissioners’ districts, making it so about 10 percent of voters who were to cast ballots in 2026 must wait until 2028 when it’s their new district’s turn. Affected voters sue. Fifth Circuit: No PI. Federal courts can’t hear purely partisan gerrymander claims, there’s no evidence of intentional race discrimination, and this is mere vote postponement natural to redistricting in a staggered election system.
11. How hard is it to validly allege that a medical specialty board is doing an antitrust in the Seventh Circuit? According to the dissent in this lawsuit against the American Board of Psychiatry and Neurology, much harder than necessary.
12. Iowa purports to make it a crime for aliens who have illegally reentered the United States to be present in Iowa, even if the federal government is still figuring out whether they can stay here. Can the affected parties sue under the Supremacy Clause? Eighth Circuit: There’s no cause of action under the Supremacy Clause, but history, tradition, and precedent say you can sue in equity to prevent the enforcement of an unconstitutional law. Preliminary injunction affirmed.
13. Ninth Circuit: Look, you’re not going to achieve anything by shouting “you can’t tell me what to do, you’re not my dad (and your proceedings structurally violate the Constitution)” at the NLRB, and so you don’t have to exhaust your constitutional claims by raising them in front of an agency that can’t do anything about them. That said, your arguments are wrong and the NLRB can totally tell you what to do. (The panel does not address whether the NLRB is your dad, but the staff here at Short Circuit thinks you can figure that out on your own.)
14. Allegations: Same-sex couple splits their time between the U.S. and Saudi Arabia (one of them is Saudi), though they hide their relationship because Saudi Arabia deems it a capital offense. At a Riyadh airport, a Lufthansa agent sends their marriage certificate to Lufthansa HQ—info that makes its way to the Saudi gov’t. They haven’t returned to Saudi Arabia since. They sue in California state court. Lufthansa removes to federal court. Ninth Circuit: Sit down and buckle your seatbelt for our flight through the minimum contacts test, under which we find that personal jurisdiction exists. Dissent: All the relevant activity occurred in Saudi Arabia, making the connection to California tenuous, at best, making jurisdiction unreasonable.
15. Wyoming law defines “hemp” in a way that arguably conflicts with federal law. Can the affected parties sue under the Supremacy Clause? Tenth Circuit: Binding circuit precedent says no, though we will note, in this four-page-long footnote, that binding circuit precedent is totally bogus and that history, tradition, and precedent say you should be able to sue in equity to prevent the enforcement of an unconstitutional law.
16. Florida inmate alleges prison officials delayed physician-prescribed treatment for gallstones, leaving him in agony for many months. Deliberate indifference to his medical needs in violation of the Eighth Amendment? Eleventh Circuit (unpublished): As we held last year, the only inmates who can bring that kind of claim are dead inmates.
17. Feds try to deport a Chilean man, claiming a crime that he committed qualified him for removal under the agency’s reading of the relevant statute. In 2022, the Eleventh Circuit agrees, but, after overturning Chevron, SCOTUS says to take another look. Eleventh Circuit (2025): He still loses, but it’s hard to figure out why. So we’re gonna go full seriatim.
18. And in en banc news, the Second Circuit will not reconsider its decision that noncitizens being detained by ICE must eventually get a bond hearing. Judge Nardini respectfully dissents joined by four colleagues (who separately dissent somewhat less respectfully.)
19. And in more en banc news, the Fourth Circuit will not reconsider its decision that federal courts have subject-matter jurisdiction over solvent debtors. Six judges disagree, and a dissental by Judge King argues that Article I does not give Congress the power to provide bankruptcy protection to a company created by the “Texas Two-Step” whereby Georgia-Pacific spun off its asbestos liabilities.
20. And in further en banc news, the Fifth Circuit will reconsider its decision granting a preliminary injunction to a student group that wanted to host a drag show at West Texas A&M University to raise money for the Trevor Project. Judge Ho wrote a dissent from the original panel decision that your summarist can only describe as extraordinar-a-scathing.
21. And in additional en banc news, the Ninth Circuit will reconsider its decision that a Hollywood producer who had over $1 mil in cash seized by Nevada highway patrol at a roadside traffic stop lacks standing to challenge the forfeiture of the money.

First Amendment victory! For over a decade, IJ client Leda Mox has taught equine massage (which is a real thing that is very beneficial for horses) to hundreds of horse owners, veterinarians, and aspiring equine masseuses. In 2023, however, Minnesota officials demanded that she either shut down or comply with expensive and cumbersome licensing requirements for “private career schools”—requirements that do not apply to many other kinds of schools. But Leda’s teaching is speech, and if the gov’t wants to restrict speech it needs to have a really good reason. The state has never even attempted to provide one, instead insisting that Leda doesn’t have standing and that the case is moot. (“We didn’t do anything to you and now we’ve stopped.”) So we’re excited to say that this week a federal district judge brushed aside the procedural shenanigans and told the state to knock it off. Click here to learn more.

The post Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal appeared first on Reason.com.

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The town of Irvington in Essex County, New Jersey, was hit hard by the opioid crisis. In 2023, the county recorded 459 drug overdose deaths, 401 of them opioid-related—the most deaths of any county in the state. Despite this predicament, Irvington officials spent most of their more than $1 million share of opioid settlement funds not on treatment, prevention, or recovery programs, but on a pair of summer concerts with DJs, luxury trailers, and catered food.

The town billed the concerts as “Opioid Awareness Day,” but they appeared designed more to promote awareness of Mayor Tony Vauss. His name topped the event’s promotional materials, and, as the State Comptroller later noted, “no opioid-related information appeared on stage, though two large posters of Mayor Vauss flanked it.” 

Those two concerts cost the township more than $630,000, according to the comptroller’s investigation, with much of that money going to Antoine Richardson, a DJ who was put on Irvington’s payroll following Vauss’ election in 2014. Richardson already drew an annual salary of nearly $180,000, plus full benefits, for a job called “Keyboarding Clerk 1” with no set hours. The investigation revealed that businesses owned by Richardson’s immediate family collected about $370,000 in related contracts for the concerts.

Beyond a few opioid-related “pamphlets printed from the internet” and a small table stocked with a handful of Narcan, the investigation found that there was virtually no health programming. Richardson told investigators that before his DJ set, he told the crowd to “stay clean” and “say no to drugs”—and that each performing artist said something to the effect of, “Kids, stay in school, stay away from drugs.”   

Irvington, New Jersey, is not an isolated case. Across the country, state and local governments are receiving approximately $50 billion in the next decade from settlements with opioid manufacturers, distributors, and retailers—including Johnson & Johnson, CVS, and Walmart—to remediate the overdose crisis. 

The settlements offered governments significant discretion in how to spend the money. Exhibit E of the national agreement lays out a non-exhaustive list of recommended uses—such as expanding treatment access, supporting harm reduction programs, and improving data collection—but leaves enforcement entirely up to the states. The settlements do not stipulate formal penalties for misuse; there are no clawback provisions or reporting requirements in place. 

States were required to draft a Memorandum of Agreement (MOA) with their municipalities, outlining how funds are allocated and specifying any reporting requirements. New Jersey’s MOA and state law require expenditures to be “evidence-based” or “evidence-informed,” which is what led to the city of Irvington’s trouble. Whether any of that money will be recovered—or whether officials will face consequences—remains to be seen.

Elsewhere, misuse has taken subtler forms. In Indiana’s Scott County, settlement dollars were used to pay staff salaries, freeing up local funds for other priorities. In West Virginia, more than half of all settlement spending last year went toward police vehicles, jail bills, and salaries, while only six percent supported treatment and recovery. These practices, known as supplantation, enable local governments to use new money to replace existing funds, effectively turning settlement dollars into general revenue. 

The pattern mirrors the infamous failure of the 1998 Tobacco Master Settlement Agreement. According to a Government Accountability Office report, states received more than $50 billion from tobacco companies between 2000 and 2005, but only 30 percent went to health care and smoking prevention. The rest was absorbed into state budgets, debt service, and infrastructure projects. 

Some states even securitized their future settlement payments, trading decades of public health funding for an upfront lump sum, and forfeiting long-term funding streams that could sustain treatment and prevention infrastructure in exchange for short-term priorities. The same practice is already being discussed for opioid settlements.

When governments are entrusted with funds to address a crisis that has claimed more than 800,000 lives since 1999, they carry a moral obligation to act accordingly. Every dollar wasted is a dollar not spent on expanding access to treatment, distributing naloxone, or building recovery infrastructure. The outcomes of the tobacco settlement provide clear lessons for the use of opioid settlement funds: Absent binding guardrails and rigorous transparency, both state and local governments face strong incentives to divert or front-load funds in ways that undermine their intended purpose.

The post How Opioid Settlement Money Turned Into a $600K Party Fund appeared first on Reason.com.

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The Pentagon is directing every state and U.S. territory to create “quick reaction forces” within their National Guards, which will be trained to respond to civil disturbances and emergencies, according to a recently leaked memo obtained by The Guardian. 

The memo instructs the National Guard Bureau to train these forces in riot control tactics, rapid deployment procedures, and the use of nonlethal weapons. The federalized forces will complement the National Guard Reaction Forces, which have existed for decades to provide emergency relief, reports The Washington Post. 

Most states and territories (excluding Washington, D.C.) will supply 500 National Guard members. These units are expected to fully mobilize within 24 hours of activation, with an initial contingent of roughly 200 troops that will be pulled from the guard’s unit that specializes in chemical and nuclear disaster response, ready by New Year’s Day. By April, the new quick reaction force will reach 23,500 soldiers strong, according to the Post. 

These new forces could signal the Trump administration’s readiness to expand federal control over local policing, with one anonymous Pentagon official telling the Post that the administration is “revising plans for the employment of [National Guard Reaction Forces] to guarantee their ability to assist federal, state and local law enforcement in quelling civil disturbances.”

Critics see the move as establishing a permanent, federally coordinated crowd-control infrastructure. Janessa Goldbeck, a Marine veteran and CEO of Vet Voice Foundation, told The Guardian that the memo represents “an attempt by the president to normalize a national, militarized police force.”

It’s unclear whether the new order—or any future deployments under it—would pass legal muster. Federal law generally prohibits the use of federal troops in civilian law enforcement, while the Insurrection Act allows exceptions only under narrow circumstances.

The Trump administration’s prior efforts to federalize National Guard units for use in cities such as Portland, Oregon, and Chicago have already faced legal challenges and pushback from state officials. In Portland, state and local officials won a temporary restraining order blocking the activation of federal troops, though this was later overturned by an appellate court. On Wednesday, a federal trial to determine the legality of Trump’s guard deployment began. In Chicago, a federal appeals panel said the administration’s justification for deployment did not meet the threshold of a rebellion or danger of a rebellion required under federal law, writing that “political opposition is not rebellion,” the Chicago Sun Times reports. These rulings suggest that any future use of the new “quick reaction” units for civilian crowd control could invite comparable constitutional scrutiny.

States are expected to submit compliance reports to the National Guard Bureau by March. It remains unclear if pending legal challenges against the Trump administration will allow this plan to be realized. However, one thing is clear: The administration’s federalization of law enforcement doesn’t seem to be going anywhere.

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